January/February 2005, Page 61
By Barry Tarlow
In the three years after September 11, 2001, the Bush Administration had almost no convictions on terrorism charges to show for its effort. The rounding up of about 5,000 people for preventive detention produced no such convictions. David Cole, The D.C. Gang That Couldn’t Shoot Straight, L.A. Times, Sept. 19, 2004, at M5. By September 2004, about 500 people were deported, but each deportation order required a finding that the individual was not connected to terrorism. Id. Although the administration touted a record of 100 convictions in terrorism cases, almost all of those were for minor offenses, not terrorism charges. Id. For example, Sheikh Abdirahman Kariye, who was arrested amid much fanfare on false allegations that his baggage had explosive residue, was only indicted on charges of Social Security fraud. He later pled guilty to lying about his income and using false identification to obtain health insurance benefits. Even the charges that purported to assert a link to terrorism, like the indictment leading to the guilty pleas of the Buffalo Six, charged not actual terrorism, but providing material support for terrorists.
The administration’s most significant terrorism convictions involved the hapless “shoe bomber,” captured by an astute flight attendant, and the jurx’s guilty verdict as to the three men accused of being part of the so-called Detroit “Sleeper Cell.” Id. As a court recently found, however, even that was three out of four too many.
The Detroit “Sleeper Cell? Case, United States v. Koubriti (U.S. Dist. Ct. E.D. Mich. Case No. 01-CR-80778), is a disturbing chapter in the larger War on Terror. Three of the four defendants in the case were arrested within a week of the September 11 hijackings. When the file came across the desk of administration officials who were hungry for a win in the newly minted War on Terror, they seized upon it. This had been the first trial on charges of terrorism after September 11 and the only one to yield a jury conviction. After a long investigation and a trial in 2003, a jury ultimately returned two convictions on terrorism-related charges, one conviction of document fraud, and one acquittal.
Despite that result, it would soon come to light the case had a seamier side. Too eager to put notches in its belt, the prosecution committed grave misconduct. It simply ignored and suppressed statements by key government witnesses who did not reach the conclusions the lead prosecutor wanted. It buried the opinions of experts who suggested that critical documents or jottings were not likely terrorist diagrams and that the defendants, while at most being common fraudsters, were not terrorists. After the verdict and a court-ordered review of the prosecution, the Department of Justice (DOJ) found itself compelled to admit a pattern of misconduct and to recommend that the court grant the defendants? motions for post-trial relief.
Although the court ultimately granted post-trial relief, a number of questions remain unanswered. Who is responsible for the misconduct that permeated the Detroit case? Is the case just the work of an overzealous prosecutor and a few agents, as the DOJ contends, or is there more to it? In these troubled times, can those accused of terrorism receive a fair trial in which they are prosecuted by lawyers attempting “to do justice” and in which their fate is objectively determined by an impartial jury?
The Detroit case appears to be part of a pattern of situations in which zealous policies originating at the highest levels of the Executive Branch go awry, with mid-level officials left holding the bag. ?[T]op officials at the Justice Department were involved in almost every step of the [Detroit] prosecution . . . .” Danny Hakim & Eric Lichtblau, After Convictions, the Undoing of a U.S. Terror Prosecution, N.Y. Times, Oct. 7, 2004, at A1. In addition to the numerous mid-level officials connected to the case, Barry Sabin, Chief of the counterterrorism section for the DOJ?s Criminal Division since January 2003, was intimately involved in the drafting of the final version of the indictment
When You?re Right, You?re Right: Seeing The World Through Blue-Blooded Glasses
Some people are still under the illusion that people who are not guilty, such as the men in the Detroit “Sleeper Cell? Case, will not be charged, much less convicted of crimes. But the charging and conviction of innocent men in the Detroit case is not entirely surprising. The case is symptomatic of what happens when the executive or prosecutorial power is combined with a zealous belief in the righteousness of one’s cause and the infallibility of one’s judgment. Wilfully blind commitment to ends over means inevitably leads to a bending or breaking of the rules.
For example, Oregon lawyer Brandon Mayfield who had converted to the Muslim faith was arrested on charges of involvement in the train bombings in Madrid, Spain. There was no proof, however, that Mayfield had ever been to Spain anytime after 9/11. One major problem was that a supervising FBI expert, who first conducted the fingerprint analysis for the DOJ, rushed to judgment in analyzing a hazy copy of a fingerprint obtained from a bag of explosives in Spain. He was confident he had the right man. Although “a reliable match would normally entail at least 12 to 13 matching characteristics,” the expert viewed the cloudy print and made his judgment based on only seven similarities. See Rukmini Callimachi, Panel Clears Lawyer of Role in Bombings, L.A. Daily J., Nov. 17, 2004, at 4. The expert was a senior person in the department. Given his status, the other concurring analysts did not dare to question him, although they should have had reason to pause and revisit this conclusion. Id. In fact, ?[p]olice in Spain had expressed doubts early on about [the] U.S. investigators? claims . . . .” Tomas Alex Tizon & Sebastian Rotella, U.S. Frees Oregon Lawyer Held in Madrid Bombings: Spanish Police Say a Fingerprint that Seemed to Link Him to the Case Belongs to an Algerian, L.A. Times, May 21, 2004, at A21.
Fortunately, weeks later, U.S. District Judge Robert Jones dismissed the charges, and the FBI formally apologized to Mayfield and his family. See Sarah Kershaw & Eric Lichtblau, Bomb Case Against Lawyer Is Rejected: Dismissal Comes After F.B.I. Faults Poor Fingerprint Images, N.Y. Times, May 25, 2004, at A16. But the case stands as an example that innocent people, even respected citizens, can be put through the wringer based on the, wrong-headed prejudgments of zealous prosecutors and agents. That, unfortunately, is just what happened in the Detroit case.
Making It Up As You Go: Creating A Case In Your Own Image
Few recent cases provide such a stark example of how prosecutorial misconduct perverts the search for justice as the Detroit “Sleeper Cell? Case, United States v. Koubriti (U.S. Dist. Ct. E.D. Mich. Case No. 01-CR-80778). This was the first post 9/11 terrorism prosecution in the country, and it involved not only prosecutorial misconduct, but also the abuse of the Executive Power in the War on Terror. Undoubtedly, the stakes were high and the spotlight was on. Yet in such circumstances, theoretically one is supposed to feel the pressure to get things right, to dot every “i” and to cross every “t.” History of course has demonstrated that in troubled times, that is not what happens. Despite help from the DOJ, the CIA, military consultants and numerous FBI agents, the prosecution here, including the lead prosecutor, AUSA Richard G. Convertino, with the assistance or tacit approval of his supervisors, resorted to a grave pattern of misconduct to win the terrorism convictions of these innocent men.
In hindsight, perhaps Convertino’s handling of the case comes as little surprise. He has a reputation in Detroit for being a zealous gunslinger. He has been described as “a prosecutor cut in the Ashcroft mold: religious and righteous, patriotic but polarizing,” as well as “abrasive” and “antagon[istic].” Richard Serrano & Greg Miller, Terrorism Case Shows U.S. Flaws in Strategy, L.A. Times, Oct. 12, 2004, at A16.
Sources close to the case say the characterizations are accurate. Convertino was known to push the envelope. He has the sort of rough-up-the-bad-guy mentality and style that endears him to law enforcement officers and rankles others who hesitate to prejudge guilt before the evidence is in. In fairness, when he testified before the Senate Finance Committee, he presented himself as a committed but reasonable prosecutor fulfilling the oath he had sworn to uphold. His approach, however, has not escaped the attention of the federal courts. In 1995, for example, the Sixth Circuit Court of Appeals discussed his posing of “concededly improper questions.” United States v. Wiedyk, 71 F.3d 602, 607 (6th Cir. 1995).
It is a mistake, however, to think that Convertino was alone in wrongfully prosecuting the case. Veteran defense attorney and NACDL member William W. Swor, one of the lawyers in the Detroit case, said, “This was not a rogue prosecutor. This was a rogue prosecution. It took more than one person to create this fraud.”
Indeed, the wrongful convictions were a year and a half in the making, and the case was surrounded by error from the start. On September 17, 2001, less than a week after the attacks in New York and Washington, agents of the Detroit Joint Terrorism Task Force descended upon a Detroit apartment at 2653 Norman Street. The search team was composed of “FBI Special Agents Mike Thomas, Paul Heyard and Mary Ann Manescu; INS Agents Joe Gillette and Mark Pilat, State Department Special Agent Edward Seitz and FBI language specialist Nazih “George? Moaikel.” United States v. Koubriti (Koubriti Suppression), 199 F. Supp. 2d 656, 659 (E.D. Mich. 2002).
They were looking for Nabil Al-Marabh, “No. 27? out of about 200 people on the FBI?s terrorist “watch list? whom agents wanted to question. Ronald J. Hansen, Craig Garrett & David Shepardson, FBI Arrests 3 Men at Detroit Home, Detroit News, Sept. 19, 2001. Al-Marabh reportedly had some connection with Osama bin-Laden that prosecutors now admit was never supported by evidence. However, Al-Marabh had already moved on. He had applied to the state for a driver’s license listing an address in Three Oaks, Michigan, more than 200 miles away from Detroit on the Indiana border toward Chicago. In fact, he was arrested in Chicago just days after the raid. David Shepardson, Charlie Cain & Craig Garrett, Detroit Fugitive Arrested Near Chicago, FBI Says, Detroit News, Sept. 20, 2001.
None of that gave the agents any pause on September 17 or thereafter. Not satisfied with their lack of success in locating Al-Marabh, they cornered the occupants of his former apartment, defendants Karim Koubriti, Ahmed Hannan and Farouk Ali-Haimoud), questioned them and searched the residence, deciding midway through the fishing expedition to obtain a warrant.
The raiding officers stumbled upon a tired, hapless bunch who appeared to meet no one’s definition of sophisticated and dangerous terrorists. Hannan and Ali-Haimoud were sleeping, and Koubriti answered the door in his boxer shorts. Agents saw in these exhausted, quiet, and admittedly cooperative men the workings of a fearsome terrorist cell. What could possibly lead to this conclusion? Like many persons new to a country, Koubriti and Hannan worked some odd jobs while they searched to find suitable, steady employment. At one point, for example, they had been off-site dishwashers at a catering company servicing planes at the airport. Koubriti Suppression, supra, 199 F. Supp. 2d at 659?62. Although the job did not actually take them to the airfield or the airplanes, they received airport-related employee badges, which the investigating agents considered to be very suspicious.
The raiding agents were also influenced by the national origins and the apparent religion of the men. They, as well as prosecutors and others connected with the case, looked at Koubriti, Hannan and Ali-Haimoud and saw visions of Islamic fundamentalism among persons of Middle Eastern descent. Their misperceptions led them far from the truth. Koubriti’s sister described him as a person who rarely attended a mosque and who “did not go to class [in college], but instead hung out in a coffee shop with friends, smoked hashish and drank.” Ann Mullen, Deliberations Begin: Fate of Four Alleged Terrorists in the Hands of a Jury, Metro Times Detroit, May 21, 2003. A former roommate of two defendants told the FBI that “the men never talked about religion, were lazy, and often drank and smoked.” Robert E. Pierre, Terrorism Case Thrown Into Turmoil: Factors Judge Is Considering Include Evidence Withheld From Defense, Washington Post, Dec. 31, 2003, at A5.
While the agents perceived aliens who were up to no good, the accused were lawful permanent residents of the United States. Koubriti and Hannan each came to the United States during the previous year by winning an immigration lottery in Morocco, where they never had been acquainted. Ali-Haimoud immigrated lawfully with his mother.
Regardless of the facts, the agents searched for evidence to confirm their preconceived notions and found what they described to be false identity documents, as well as a day planner, a tourist videotape, audio tapes of speeches delivered in Arabic and the old work badges from the dishwashing jobs. Koubriti Suppression, supra, 199 F. Supp. 2d at 659?62. Inside the day planner were some wild scrawlings. According to the agents? characterization in the affidavit supporting the search, these were sketches of an airport and flight patterns, with references to locations in Turkey. Amid the furor still palpable from the attacks in New York and Washington, the agents arrested Koubriti, Hannan and Ali-Haimoud. Ronald J. Hansen, Craig Garrett & David Shepardson, FBI Arrests 3 Men at Detroit Home, Detroit News, Sept. 19, 2001.
The next day, the prosecution filed a complaint charging the men with possession of false documents, and the case was assigned to United States District Judge Gerald E. Rosen. AUSA Convertino assumed control of the prosecution team. Despite the thinness of the evidence, news reports went out and the case took on an elevated profile. Discussing the same scrawlings that CIA agents would later find to be uncompelling as evidence, one unidentified government official said ominously, ?[t]he references to the American military base in Turkey are chilling.” Id. (emphasis added). With keen foresight Imad Hammad of the America-Arab Anti-Discrimination Committee remarked, “In the past we’ve had many cases where law enforcement rushed to judgment in actions that were found baseless. . . . I don’t think it will benefit any of us to spread fear.” Id.
Given the high profile of a case based on finding men who did not even have any noteworthy fraudulent documents, let alone terrorist plans or propaganda, perhaps it is unsurprising that the prosecution team continued to build its case upon foundations that were questionable at best. Interestingly, the government is now pursuing not these document fraud charges, but rather some unrelated charges against Koubriti and Hannan for faking auto accident injuries to obtain insurance money. See 2 Ex-Terrorism Suspects Face Fraud Charges, N.Y. Times, Dec. 16, 2004, at A31.
During the “Sleeper Cell? investigation, federal agents found themselves an informer Youssef Hmimssa, and in May 2002 they offered him a deal, raising all the dangers of informer testimony. See Best Testimony Money Can Buy: Ethical Rules and Witness Payments: RICO Report, The Champion (April 1995). Hmimssa was a fraudster who had immigrated to Chicago from Romania. Before entering the United States, he had traveled widely throughout Romania making contacts and getting into trouble in Bucharest and other places. He was accused of engaging in illegal money changing and other offenses in areas dominated by Romanian crime syndicates. Hmimssa also traveled to Morocco on a false passport. When he entered the United States using phoney documents, he claimed to have nothing of value. Within six months, he had his own apartment full of new furniture in northern Chicago with indications that he might be running with the Romanian crime syndicate there. One witness interviewed by the FBI had “information that Hmimssa was working for a Romanian gang . . . .” (Defs.” Mot. for Judgment Notwithstanding the Verdict or New Trial, at 24.) By the time AUSA Convertino caught up with him, Hmimssa was facing federal charges of document fraud, credit card theft and credit card counterfeiting in three different districts. Despite all this, the prosecution was more than willing to deal in an effort to win the desired convictions, no matter how bad Hmimssa might turn out to be.
Although Hmimssa had only stayed with the defendants for about two weeks, he was willing to say they were terrorists and that during those two short weeks they tried to recruit him into terrorist activities. See Ann Mullen, Deliberations Begin: Fate of Four Alleged Terrorists in the Hands of a Jury, Metro Times Detroit, May 21, 2003. “In exchange for his cooperation and testimony at trial [the AUSA] stipulated in a Rule 11 Agreement to a sentencing range of 37 to 46 months and further agreed to, and has, in fact, requested a more than 50% downward departure from that range for “substantial assistance.” ? United States v. Koubriti (Koubriti Brady Materials), 297 F. Supp. 2d 955, 959 (E.D. Mich. 2004).
Perhaps more important, Hmimss cases were consolidated so that he could avoid consecutive sentencing, and the reported losses from his frauds were disingenuously capped at $70,000.00, rather than the many multiples of that amount, which he actually stole. At one point, Hmimssa might also have been offered an S-visa in exchange for his testimony, allowing him to avoid deportation.
Hmimss false testimony would become critical to the investigation and the trial. Not only did he provide five days of “evidence? in a seven-week trial, id., but also he was responsible for more than one round of amendments to the indictment to add terrorism-related charges and a fourth defendant, Abdel Elmardoudi.
Throughout the case, the actual charges against the defendants continued to shift. One version of the indictment included a charge of providing material support to terrorists, in violation of 18 U.S.C.